If the president’s lawyers gin up an argument that he can, we will be witness to authoritarianism in its defining form. By Cass R. Sunstein13 April 2020, 18:00 BST
It is alarming, to say the least, that people are even asking this question: Does President Donald Trump have the legal authority to postpone or cancel the 2020 presidential election?
The answer is entirely clear: He does not.
Start with the Constitution itself: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
The founding document reflects an unambiguous judgment that Congress, and not a potentially self-interested president, gets to decide when the leader of the United States shall be chosen. If the president could set the time of his own election, he could specify a date that is favorable to him – or postpone a specified date until the conditions are just right.
Congress has exercised the authority that the Constitution gives it. A law enacted in 1948 says this:
The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.
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A finicky reader might respond: Those provisions are about selection of members of the Electoral College. What does that have to do with the popular vote?
The answer is that the two are inextricably intertwined. Under the Constitution, of course, the winner of the election is the candidate who gets the most votes in the Electoral College. Each state is allocated a specific number of electors, whose votes are generally given (by state law) to the candidate who wins the popular vote in that state.
In practice, Congress’s specification of “the Time for choosing the Electors” is also a specification of the time for the popular vote. (To be sure, the Constitution also gives states a significant role in deciding how to appoint electors, but it does not give the president the authority to tell states what to do.)
It’s true that Congress could change the date that it enacted. Because Democrats control the House of Representatives, however, that isn’t very likely (unless circumstances get a lot worse).
And even if Congress decided to do that, it wouldn’t much help Trump. Under the 20th Amendment, “the terms of the President and the Vice President shall end at noon on the 20th day of January.” The plain meaning is that after the expiration of a four-year term, a president who has not been re-elected has to leave office.
Isn’t that the end of the matter? Not quite. It has long been disputed whether the president has some kind of inherent “emergency power.” Trump seems to think he has that power (and more). But the Constitution does not explicitly grant the president anything like that – which is a big problem.
The most relevant Supreme Court decision is known as the Steel Seizure Case, and it is one of the most important in the nation’s history. It arose when President Harry Truman issued an order in 1952 directing seizure of U.S. steel mills, arguing that a possible work stoppage could create a national catastrophe in the midst of the Korean War.
In a nationwide address, Truman explained: “Our national security and our chances for peace depend on our defense production. Our defense production depends on steel.”
As a matter of law, the government argued that under the Constitution, Truman had “inherent power” to do what he had done – power that, in its view, was “supported by the Constitution, by historical precedent, and by court decisions.”
The Supreme Court flatly rejected that argument. It said this: “The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice.”
Justice Robert Jackson, a strong defender of presidential prerogatives, had this to say about Truman’s claim of emergency power, and about the views of the Constitution’s authors:
They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work.
That’s pretty decisive.
Of course, we cannot rule out the possibility that Trump’s lawyers will gin up a constitutional argument that will support whatever he wants to do, or that he will ignore legal restrictions on his authority. If so, we would be in a genuine constitutional crisis – and be witness to authoritarianism in its defining form.